The speaker of the ACT Legislative Assembly is considering taking legal action against WorkSafe ACT in the Supreme Court as estimates hearings have been halted due to a prohibition notice.
Joy Burch said the action was "unprecedented", saying it represented a "grave threat to the privileges of the Assembly" and it could amount to contempt.
WorkSafe inspectors slapped the notice on the Assembly on Friday afternoon following a complaint about the risks associated with COVID-19 in holding face-to-face meetings at the Assembly.
Workplace Safety Minister Mick Gentleman had raised concerns over the face-to-face hearings with the Assembly's select committee on estimates.
Ms Burch told the Assembly on Monday morning the notice had been issued following a disagreement between a government minister and the committee about whether territory officials could choose to attend the hearings remotely.
"I understand that it was against this background and acting on a complaint, work safety inspectors were dispatched to the Assembly precincts and the prohibition order was subsequently issued by WorkSafe," Ms Burch said.
An ACT government spokesman confirmed advice was sought from WorkSafe about the requirement of face-to-face hearings.
"Given the concerns raised about having a large number of senior public servants for prolonged periods of time in confined spaces, the ACT government sought advice from WorkSafe regarding the committee's requirement that the hearings be held in person," he said.
"The government has always acted to protect the public services and ensure the community has access to the government services it needs."
The prohibition notice was served to Ms Burch with inspectors saying the Legislative Assembly had not identified "reasonably foreseeable risks in the workplace or implemented adequate control measures" in relation to the transmission of COVID-19.
The notice required the Assembly to undertake a risk assessment in relation to face-to-face hearings or committee hearings.
But Ms Burch wrote to the territory's Work Health and Safety Commissioner Jacqueline Aguis saying the proposition was "entirely without merit" and that this was a matter of "deep constitutional significance".
"The terms of the notice are profoundly misconceived as a matter of law, represent a grave threat to the privileges of the Assembly, and could quite possibly amount to a contempt of the Assembly," Ms Burch wrote
"The action taken by you cuts directly across the separation of powers between the legislative and executive arms of government, and, on its face, seeks to upend the exclusive cognisance of the Assembly to exercise control over its proceedings.
"Setting aside issues relating to parliamentary privilege and the appropriate separation of powers, there are a number of technical and merits issues that arise in connection with the way in which the relevant powers under the WHS Act have been exercised and the terms of the notice itself.
"While the WHS commissioner fulfils important regulatory functions, these functions do not take precedence over the effective performance of the Assembly's legislative, representative and accountability functions."
In the letter, Ms Burch said she would be "duty bound" to consider taking action in the Supreme Court if the notice was not withdrawn by 10.15am.
Ms Burch said she had not received a response by that time.
WorkSafe would not comment on the letter or statements by Ms Burch.
The prohibition notice, posted on the entrance to the Assembly, showed WorkSafe found it had reasonable grounds to find the Assembly has contravened Section 19 of the Work Health and Safety Act.
It found that the select committee on estimates 2022-23 had not undertaken a risk assessment and not consulted with those workers who "carry out the work for the business or undertaking who are, or are likely to, be directly affected by the activity".
Opposition Leader Elizabeth Lee said it was concerning that the notice from WorkSafe came after a government minister had raised concerns.
She said it had a significant impact on the ability of members to hold the executive to account.
"In Australia we are well served by a democratic system that firmly protects the separation of powers and when you see this kind of thing happening, it raises alarm bells," Ms Lee said.
"The fact that the Speaker is seeking legal advice about potential supreme court action confirms how serious this matter is."
Estimates hearings are held over a two-week period with government ministers to face questioning over the recent 2022-23 ACT budget.
Chief Minister Andrew Barr was the first government minister due to appear from 10.30am on Monday. At this stage, estimates will not go ahead on Monday and Tuesday. Hearings scheduled for Monday will likely be postponed for another two weeks.
The first of the estimates hearings started on Friday with community groups. Some were held face-to-face and others were held virtually.
Estimate and annual report hearings have previously been held remotely due to COVID-19 restrictions.
